Young v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Patricia Caress McMath Jeffrey A. Modisett
Indianapolis, IN Attorney General of Indiana

J.T. Whitehead
Deputy Attorney General
Indianapolis, IN

IN THE

SUPREME COURT OF INDIANA

JERRY YOUNG, )
)
Appellant (Defendant Below), )
)
v. ) Cause No. 49S00-9904-CR-242
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Nancy L. Broyles, Master Commissioner
Cause No. 49G04-9804-CF-058703

March 14, 2000

SHEPARD, Chief Justice.

Appellant Jerry Young was convicted of robbery as a class A felony.
Ind. Code Ann. § 35-42-5-1 (West 1998). The court imposed the presumptive
sentence of thirty years and added thirty years because Young was an
habitual offender. In this direct appeal, he challenges:

1) the sufficiency of the evidence, claiming that the State did not
prove that he took property “by using force”;

2) the sufficiency of the evidence, claiming that the State did not
prove that the victim sustained serious bodily injury; and

3) the proportionality of his sentence.

The Event Itself

On March 29, 1998, Jerry Young entered the home of Betty and Earl
Morris. He asked the Morrises if they would be interested in buying food
stamps, and they declined. Young then asked Mr. Morris if he had change
for a $50 bill, and held up a bill with the number 50 on it. As Morris was
taking out his billfold, he began to think the money was fake, and said he
would not make change. Young shoved Morris back against the door and
grabbed the billfold. He then ran out to his car, which was in the alley
with the engine running.

Morris pursued Young and arrived at the car in time to grab onto the
windshield and the door handle. He reached into the open window to turn
off the ignition. Young rapped his knuckles with a screwdriver and drove
down the alley, but Morris continued to hang onto the car. Morris said he
couldn’t let go, because Young “was going too fast.” (R. at 153.) The
friction from the pavement of the alley wore through Morris’s shoe, and he
fell off. Young ran over Morris’s leg as he sped away.

Morris sustained a fractured ankle and abrasions and bruises on his
arms and legs. He went to the emergency room for treatment a day or two
after he was injured. Morris reports that his leg is still stiff and, as a
result, he “freeze[s] up and fall[s] down a lot, trying to walk.” (R. at
168.)

I. The Evidence of Force

Young alleges that the seizure of Morris’s property was already
complete when Young exerted force. Because the absence of force reduces a
robbery to theft, see Eckelberry v. State, 497 N.E.2d 233 (Ind. 1986),
Young contends that the evidence merited at most a theft conviction, (see
id.).

It is true that committing robbery by use of force requires that the
force be used before the defendant completes taking the property from the
presence of the victim. Eckelberry, 497 N.E.2d at 234. In this case,
Young snatched Morris’s wallet, ran off the Morrises’ property, jumped into
his car, which he had left running, and attempted to drive off. Thus, by
the time Young exerted the force on Morris by striking his hand with a
screwdriver, speeding up, and running over Morris’s leg, he was off the
Morrises’ property and attempting to escape. Essentially, Young claims
that the force was used to accomplish his escape, not take the property.

We rejected this very claim in Eckelberry. Eckelberry stole the
victim’s car parked outside her house. On his way off her property, he hit
her with the car. He escaped, was caught, tried and convicted of robbery
by use of force. We affirmed the conviction, holding that the force “not
only accompanied the taking of the automobile . . . , but indeed was
necessary to accomplish it.” Id. at 234.

In the present case, Young succeeded in removing the wallet from the
premises and from Morris’s presence only by hitting Morris with the
screwdriver and driving away over Morris’s leg. Had he not done so, Morris
would have turned off the ignition of the car, halting Young’s escape. “As
such, [Young’s] use of force was necessary to accomplish the theft . . .
and was thus part of the robbery.” Coleman v. State, 653 N.E.2d 481, 483
(Ind. 1995).

In Coleman, the defendant put some film canisters from a store into
his pocket and left the building. A manager followed him outside. Seeing
the film protruding from the defendant’s pocket, the manager asked the
defendant whether he had forgotten to pay for anything. The defendant
pulled a knife and threatened the manager. He escaped, was caught, tried
and convicted of robbery by use of force. We affirmed.

Similarly, in Cooper v. State, 656 N.E.2d 888 (Ind. Ct. App. 1995),
the perpetrator went into the victim’s house to try to convince victim to
buy items from him. As the defendant was leaving, he slipped a gun from
the victim’s back pocket. The victim pursued defendant onto the porch,
where they struggled. The struggle continued into the front yard.
Defendant escaped, was caught, tried and convicted of robbery by use of
force. Again, we affirmed. Id. at 890.

Young attempts to distinguish Eckelberry, Coleman, and Cooper on the
basis that the defendants in those cases exerted the force while the
defendant remained on the victim’s property, whereas Young exerted force
once he was off Morris’s land. We think this position untenable.

“We have previously held . . . that a [robbery by use of force] is not
fully effectuated if the person in lawful possession of the property
resists before the thief has removed the property from the premises or from
the person’s presence.” Coleman, 653 N.E.2d at 482 (emphasis added)
(citing Eckelberry, 497 N.E.2d at 234 (“The evidence showed the force was
used before Eckelberry completed taking the automobile ‘from the presence
of’ Mrs. Bohannan.”)). The statute provides that the property must be
taken from “another person or from the presence of another person.” Ind.
Code Ann. § 35-42-5-1 (West 1998). A defendant may exert force off the
victim’s land and still exert the force in the victim’s presence. Many
robberies occur in places never owned by the victim, like parking lots.

“A crime that is continuous in its purpose and objective is deemed to
be a single uninterrupted transaction.” Eddy v. State, 496 N.E.2d 24, 28
(Ind. 1986). A robbery is not complete until the defendant asports the
property, or takes it from the possession of the victim. Id. (upholding
felony murder conviction where defendant killed victim after removing
property from victim’s pockets, but prior to taking property away with
him); Neal v. State, 214 Ind. 328, 14 N.E.2d 590, 596 (1938) (defining
asportation). Asportation continues as the perpetrators depart from the
place where the property was seized. See Coleman, 653 N.E.2d at 482; Eddy,
496 N.E.2d at 28. In short, when the robbery and the violence are so
closely connected in point of time, place, and continuity of action, they
constitute one continuous scheme or transaction. Thompson v. State, 441
N.E.2d 192 (Ind. 1982); Stroud v. State, 272 Ind. 12, 395 N.E.2d 770
(1979).

Such is the case here. The snatching of money, exertion of force, and
escape were so closely connected in time (to sprint from house to running
car parked outside), place (from door to alley), and continuity (in
stealing money, then attempting to escape with it), that we hold Young’s
taking of property includes his actions in effecting his escape.[1]

II. Evidence Concerning Serious Bodily Injury

Indiana Code § 35-42-5-1 provides that robbery resulting in bodily
injury to anyone other than the defendant is a class B felony, whereas
robbery resulting in serious bodily injury is a class A felony. Serious
bodily injury is defined as “bodily injury that creates a substantial risk
of death or that causes serious permanent disfigurement, unconsciousness,
extreme pain, or permanent or protracted loss or impairment of the function
of a bodily member or organ.” Ind. Code Ann. 35-41-1-25 (West 1998).
Young argues that Morris did not suffer serious bodily injury, and that his
crime was therefore only the class B offense. (Appellant’s Br. at 9.) We
disagree.

“Whether bodily injury is ‘serious’ has been held to be a matter of
degree and therefore a question reserved for the factfinder.” Hill v.
State, 592 N.E.2d 1229, 1231 (Ind. 1992). Here, a 69-year-old victim
suffered a fractured ankle and badly lacerated arms and legs as a result of
the robbery. (R. at 162-66.) His ankle was placed in an immobilizing
split for almost eight weeks. (R. at 256, 260.) He has residual pain and
difficulty walking. (R. at 138, 168.)

This is substantial probative evidence from which the factfinder could
reasonably find serious bodily injury beyond a reasonable doubt. See,
e.g., Hill, 592 N.E.2d at 1231 (victim’s leg in splint for five weeks,
missing work for four weeks amounted to serious bodily injury); Hawkins v.
State, 514 N.E.2d 1255, 1256 (Ind. 1987) (67-year-old victim’s broken arm,
significant pain, and residual soreness amounted to serious bodily injury).

III. Proportionality of Sentence

Finally, Young argues that his sixty-year sentence is
unconstitutionally disproportionate to the nature of the offense, in
violation of Article I, section 16 of the Indiana Constitution.

The Indiana Constitution demands that penalties be proportionate to
the nature of the offense. Ind. Const. Art. I, § 16. “Much of the recent
case law interpreting Section 16 involves challenges to sentences enhanced
according to the habitual offender statute.” Conner v. State, 626 N.E.2d
803, 806 (Ind. 1993) (citations omitted). In analyzing a
disproportionality claim concerning an habitual offender enhancement, we
inquire into both the nature and gravity of the present crime as well as
the nature of the predicate felonies. Mills v. State, 512 N.E.2d 846 (Ind.
1987); Taylor v. State, 511 N.E.2d 1036 (Ind. 1987)).

The present crime is serious in nature. Young used force to escape
with the wallet, which resulted in serious bodily injury to an elderly
victim. The predicate felonies are similarly weighty. The State points
out that Young has been arrested thirty-eight times, sixteen of which were
for felony offenses, and convicted nineteen times, six of which were for
felony offenses. (Appellee’s Br. at 7 (citing R. at 89).) Relying on the
gravity of the present offense and the severity and numerosity of the
predicate offenses, we affirm Young’s sentence.

Conclusion

Accordingly, we affirm the conviction and sentence.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
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[1] Young draws our attention to a single case to the contrary, decided in
1878. Shinn v. State, 64 Ind. 13 (1878). In that case, two con men
engaged their mark in a lengthy set-up, then snatched money from his hand
and attempted to flee. The victim grabbed the perpetrator who was holding
the money, and the three scuffled. While one of the wrongdoers managed to
run off, the other, Shinn, was apparently apprehended. This Court
reversed, saying: “The taking must not precede the violence or putting in
fear.” Id. at 17. The Shinn opinion is good reading, but we think it has
long since been effectively overruled.